Law and order auction leads to Smart Justicewant real solutions to crime and violence, not knee jerk, populist reactions.12 Smart justice approaches recognise that genuine community

Law and order auction leads to Smart Justice

In the lead up to last year’s Victorian election a group community agencies, peak bodies and community networks joined forces to launch the Smart Justice campaign.According to the organisers, the campaign aimed to counter law and order populism during the 2006 Victorian state election.

The campaign called on all community organisations and individuals concemeed about social justice and human rights to get involved.

United States, United Kingdom, Australia and New Zealand, authors found that contemporary criminal justice policies in each of those five countries have been specifically designed to appeal to voters rather than actually preventing or reducing crime.1

“Election campaigns are typically times when politicians go for the so-called 'tough on crime' vote. Law and order populism has a range of ser ious negative consequences for our communities, ’’ according to Smart Justice.

“Punitive law and order or 'tough on crime ’ policies have negative impacts upon society. ”

Politicians now knowingly use Tough on crime’ polices to obtain political advantage, despite the negative impacts upon our society.

The punitive obsessionUaw and order policies fuel public expectations and demands for instant legislative solutions to complex social problems or particular horrific crimes.

Information about the campaign is available from http://www.smartjustice.org.au/.

The following is excerpts of the information used as part of the Smart Justice campaign.

IMPACTS OF LAW AND ORDER POPULISMPunitive law and order or Tough on crime' messages by the public and politicians have a series of nega­tive impacts upon society, upon public policy and the development of a smart and progressive justice system.

Law and order populism tends to divide communi­ties. It leads to higher levels of community conflict and criminalises marginalised communities. Law and order populism also diverts resources and support away from sound social policies and programs that may be far more effective, cheaper, and more humane ways to reduce crime.

Do politicians want to win votes or stop crime?Law and order electioneering seems somewhat inevitable. But politicians have only been success­fully spruiking tough on crime policies since the eighties.

Law and order has since become ingrained as a big ticket election item in just about every constituency in the Western world, enough to make or break a parly 's fortune. So much so that, in a wide-scale study of tlie criminal justice systems of Canada,

The rationale for heavy sentences is that they punish and act as a deterrent. While people initially think that increased penalties will reduce crime, figures suggest otherwise. Between 1988 and 1998 prison populations in Australia increased by 55 percent, without any proportional impact on crime rates.2

Policies such as mandatory sentencing are viewed as signs of political strength, and crime control becomes a tool by which governments seek to retain political power.3 There are many highly effective alternatives to prison that are not used as often or funded as they should be, partly due to political fears that they may be publicly seen as soft on crime and criminals.4

Fuelling fear of crimeThere is a certain easy logic to law and order poli­tics. But this logic demands that parties come up with increasingly harsh punishments at each elec­tion which can only be justified on the basis that crime and violence are worsening, which it isn’t. Community fears are continually fuelled to meet the political need for more punitive measures.

Many people still think that crime is on file rise. However, these beliefs exist without any appreci­able rise in the crime rate over the past 25 years. The change has not been in crime rates, but in the perception of crime.5

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Law and order auction leads to Smart Justice cont...Myths and the mediaMost people have few clear facts about crime and imprisonment rates, conditions in jail, and non-custodial sentencing alternatives. Myths and misconceptions oflawand orderissues are reinforced by ill-informed and simplistic media coverage.

Dr Karen Gelb of the Sentencing Advisory Council, noted that most people leam about crime and the justice system through the mass media. It thus plays "an integral role in the construction of both public opinion and the public 'reality' of crime".7

Dividing our communitiesLaw and order politics ultimately depends on the vilification and suffering of others, typically those groups and individuals least able to mount a case in their own defence. Young people, poorer people, the homeless, drug users, culturally and ethnically diverse and Indigenous people are often the hidden targets of 'tough on crime’ policies.8

Punitive law and order or 'tough on crime' messages by the public and politicians have a series of nega­tive impacts upon society, upon public policy and the development of a smart and progressive justice system.

Law and order populism tends to divide communi­ties. It leads to higher levels of community conflict and criminalises marginalised communities. Law and order populism also diverts resources and support away from sound social policies and programs that may be far more effective, cheaper, and more humane ways to reduce crime.

Undermining police and community relationsPopulist calls for more punitive policing often under­mine sensitive community policing efforts. Punitive policing leads to increasingly hostile police-youth contact which provides the context for the sort of riots we have seen in New South Wales.9

Even police recognise that certain police tactics may result in losing the respect and support of a commu­nity. The disproportionate targeting of minority citizens for arrest leads to resentment and backlash.

When certain communities view the criminal justice system as unjust, they are less likely to be coop­erative, and more likely to withhold information, to fail to appear as witnesses, and to withhold guilty verdicts in important cases. Moreover, the moral authority of the legal order becomes meaningless and an important deterrent to criminality is lost.®*

Impacts on Social PolicyWe now understand that social inequalities and injus­tices influence and give rise to crime. But law and order policies divert resources and political support

away from sound social policies and programs, education, social services and public resources.

More prisons and police inevitably come at a cost and that cost may well be school closures, declines in public health care and other basic services.11 Energy and investment needs to focus on the prevention of crime and violence through early intervention, evidence-based social policies and programs. Quality child care services, schooling, social services and public resources must be primary crime prevention initiatives.

Smart Justice AlternativesOnce the law and order genie is out of the bottle it can be hard to put back.

Evidence from around the world indicates that people want real solutions to crime and violence, not knee jerk, populist reactions.12 Smart justice approaches recognise that genuine community safety has more to do with education, health, housing, community services and with stabilising the family unit than it ever will with simply locking people away.13

INDIGENOUS PEOPLE AND THE CRIMINAL JUSTICE SYSTEMIn Australia, Indigenous people are 6 times more likely to be arrested than non-Indigenous people and 13 times more likely to be imprisoned.

The Royal Commission into Aboriginal Deaths m Custody (RCIADIC) reported in 1991. At that time, Aboriginal people made up 14 percent of the total prison population and were up to 15 times more likely to be in prison than non-Aboriginal people.14 It made a large number of recommendations to address this issue. Despite this, the number of Indigenous prisoners increased over the last decade. Indigenous people represented 22 percent of the total prisoner population as at 30 June 2005.15 The total number in prison increased by 12 percent over 2004 to 2005 (from 5,084 to 5,656).

Most Indigenous people in prison are serving short sentences. If all Indigenous prisoners serving a sentence of six months or less were not imprisoned, the Indigenous population in prison over 12 months would be reduced by 56 percent.16

Most criminologists agree that there is a systemic bias against Aborigines in Australia.17

Why Indigenous Australians are over repre­sentedThe Royal Commission into Aboriginal Deaths in Custody noted that the over-representation of Aboriginal people in prison was directly related to the "whole of life” experience of Aboriginal People. The Commission found that "the single significant

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contributing factor to incarceration is the disadvan­taged and unequal position of Aboriginal people in Australian society in every way, whether socially, economically or culturally".18

The Australian and international experience has been that unemployment and income inequities are often associated with violence and petty crime. Hie effect of unemployment on imprisonment has been calculated to be twice that of being Aboriginal, and the effect of poor education is tenfold that of being Aboriginal alone. Two thirds of people in pnson in Australia were unemployed at the time of arrest and only 1 in 8 prisoners finished secondary school. Indigenous Australians are more likely to be unemployed and less likely to finish high school than non-lndigenous Australians.19

The gap between Indigenous and non-lndigenous people in health, education, employment and housing is not closing. Life expectancy for Indigenous people is 20 years lower than non-lndigenous Australians, infant mortality 4 times that of non-lndigenous Australians, unemployment is 2.8 times higher, and the suicide rate is 3 times higher.20

The approach to over-representation of Indigenous people in prisons should therefore go beyond changes to the justice system and address raising the economic wellbeing of Aboriginal Australians to that of non-lndigenous Australians.

Impacts of Indigenous over-representationThe impact of the overrepresentation of Indigenous Australians in prisons is wide-reaching and severe Indigenous communities are already among the most disadvantaged in Australia, and are under enormous stress.

The over-representation of Indigenous people in custody is likely the manifestation of police harass­ment, surveillance and, in some cases, provocation on the basis of Aboriginal appearance21

The excessive imprisonment of Aboriginal people means that family relationships and support networks are disrupted, and children are deprived of parents and other significant relatives. The criminalisation of aboriginally breeds a “right-of-passage" culture and encourages an “inevitability" mentality, which only results in more crime.

Fear of the police and justice system leads to stress which raises physical and mental health issues. Indigenous people begin to feel unable to go about their business free from interference and avoid public places, which is an erosion of their rights.22

Resources are used to support people in custody through the provision on legal services, visitation, family support and advocacy services, which could be better used for education, health, or other services

The cycle of poverty of the Indigenous community is perpetuated through loss of income, payment of fines and legal costs, and people are further denied adequate health services and education whilst in custody.

RecommendationsA number of organisations have made recommenda­tions about how to address the over-representation of Indigenous people in prisons. These include:* Improved quality of Aboriginal Legal Aid* Implementation of the recommendations of the

Royal Commission into Aboriginal Deaths in Custody - this requires identification of key areas and the development of strategies to implement them

* Cultural awareness training for court officials, police, members of the judiciary and prison workers, and measure to improve relationships with these groups

* Community education on legal rights* Representation on bodies involved in law

reform* Greater involvement of families and communi­

ties in tlie legal system* Indigenous representation on juries* Provision of more Indigenous staff and better

health services within the prison system* Training and employment of Indigenous police

and police aides* Community policing initiatives* The idea that tougher sentences and stricter

policing are effective means of ensuring compli­ance with the law needs to be recognised as inadequate

* Greater use of diversion for Aboriginal people given short sentences

* Cultural education of police, prison staff and the judiciary

* Reaffirm the importance of working together with the Indigenous Community and finding ways to do this more effectively.

* The involvement of community engagement in problems and solutions in social and justice issues.

* A comprehensive Government commitment to reducing systemic disadvantage

* Encourage Indigenous Australian “good news stories" to help counter the toxic and discrimina­tory approach that the media has in relation to Indigenous Australian organisations and people.

ABUSED, ADDICTED, MENTALLY ILL. IS PRISON THE BEST PLACE FOR WOMEN OFFENDERS?Women are going to jail in record numbers - a trend that has alarmed some experts and left the prisoncontinued page 12...

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Law and order auction leads to Smart Justice cont...system struggling to cope.

Between 1998 and 2003, Victoria’s female prison population increased by 84 percent, almost triple the growth of the male prison population over the same time. The increase was related to growth in: the use of remand, particularly for women with complex mental health and drug treatment needs; breaches of non-custodial orders; violent and drug-related offending; the number of women with no prior imprisonment or community corrections history who were sentenced to prison for a short term.

In a number of areas imprisonment can often be a much worse punishment for women. Women make up a much smaller percentage of the prison popu­lation but women prisoners are among the most vulnerable, unwell and disadvantaged group with the corrections system.

Seven percent of prisoners were women in 2005, up from 4 percent in 1984.22 From 1991 to 1999 the number of women in prisons increased from 9.2 per 100,000 to 15.3 per 100,000 - about a 66 percent increase - while the number of men in prisons over the same period rose only by 24 percent (194 to 240.5 per 100,000).23

Women are being jailed in record numbers and for longer sentences. In June 2000, 40 percent of w omen served sentences longer than 12 months. By June 2004, 59 percent.

Women’s healthWomen in prison have a greater burden of disease and ill health than their male counterparts. Women are more likely to have chronic illnesses such as hepatitis and asthma and also experience more ill health symptoms.24

Women's healthcare in prisons is an example of indirect discrimination against women - while women's healthcare needs are greater (for example, the requirement of healthcare that actively address reproductive health) women do not receive an increased level of care.25 Moreover, w'omen in prison have less access to specialist services, more barriers to accessing tertiary health care and less availability of intensive mental health care than their male counterparts.26

Despite the greater and more complex health needs of women in prison they are not provided with appropriate facilities. This discrimination is often justified because women prisoners are in such small numbers.

Mental healthThere is growing alarm about the lack of services for women prisoners in Victoria. Women in prison

are 1.7 times more likely than men to have a mental illness - and 84.5 percent of women in prison had a mental disorder compared with 19.1 percent of women in the community.27 Fifty-one percent of women surveyed reported having been diagnosed with a mental health illness prior to their incarcera­tion.

Drug dependencyProfessor Paul Mullen, clinical director of the Victorian Institute of Forensic Mental Health, says much of the growth in the women's prison popula­tion stems from drag and public nuisance offences.

The inadequacy of drag treatment facilities for women has been identified as a key problem area in the management of female prisoners in all Australian states.

In Victoria, it has been estimated that 80 percent of women enter prison with a drag or alcohol depend­ency.28 Sixty-seven percent reported a connection between their drug and alcohol abuse and the offending behaviour.29 Two thirds of first-time offenders reported drug abuse before their impris­onment, compared to 92 percent serving second or subsequent sentences.30

It has been consistently documented that a large majority of women in prison have histories of phys­ical and sexual abuse, including abuse as children and intimate partner violence.

In a study of women prisoners 77 percent reported a history of past abuse.31 The prisoner health survey, shows that in the 12 months prior to imprisonment alone over 30 percent of all young women and 17 percent of older women had been physically hurt by their partner; around 10 percent had been raped by their partner.32

More than half of a sample of women at the Dame Phyliss Frost Centre (DPFC), reported being physi­cally abused in childhood or adolescence, with 68 percent reporting emotional abuse and 44 per cent reporting sexual abuse.

Violence and abuse has significant and far-reaching health impacts beyond the immediate physical harm that women experience. It can lead to drag abuse, self-hann, depression suicide attempts and repro­ductive health problems. Women in prison require services that actively address these issues. Breaking this cycle of abuse, violence, fear and crime through rehabilitation, support and treatment is in the inter­ests of the community as a whole.

Women are generally primary care givers Forty-three percent of female prisoners reported that at the time of imprisonment they were the carer of

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dependants - previous research lias indicated that a high percentage of children of women in prison will also end up in prison. In addition, 44 percent of the women who were previously carers have no contact with those that they previously cared for.33

Owing to the importance to women of maintaining contact with their families (especially their chil­dren) most female prisoners report being willing to submit to strip searches to maintain contact, despite the practice being state-sanctioned sexual assault.34

Education & employmentEducational provision to women's prisons is of a poorer quantity, quality, variety and relevance than that offered in men's prisons.35

Sixty-seven percent of women prisoners were, at the time of their imprisonment, in an economic position to require some sort of government benefit. Of the women sun/eyed, 40 percent had not received a year 10 education, compulsory for the state.3®

The provision of education and employment training is a key to keeping women out of prison. Programs at women's prisons are inadequate to address these issues In most prisons women must participate in either education, employment or other programs in order to be paid a wage, yet very few programs or education or employment options exist.

Smart Justice alternativesInstead of imprisoning more women, the govern­ment needs to invest in more effective alternatives to custody and crime diversion schemes. The best way to reduce women’s offending is by tackling the causes - by improving education and employment training, mental health services, tackling drag abuse and through community based punishments.

ENDNOTES1. Julian V. Roberts, Loretta J. Stalans, David Indermaur and

Mike Hough Penal Populism and Public Opinion: Lessons from Five Countries, Oxford University Press, 244pp, 2003

2. Ibid.3. Law-and-order politics, public-opinion polls and the

media.(Australia). Sharon N. Casey and Philip Mohr. Psychiatry, Psychology and Law 12.1 (April 2005), pl41

4. David Brown, “The Politics of Law and Order” Law Society Journal, 40 (9) Oct 2002, p 64.

5. Australian Institute of Criminology, (1999). Australian crime: Facts & figures, 1999. Canberra, Australia: Australian Institute of Criminology.

6. Kelly, A. Councils warned about Misuse of Crime Stats. Media release 23 August 2006

7. Gelb, K. Dr. Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing, Sentencing Advisory Council, July 2006

8. Jude McCulloch “National (In)Security Politics in Australia” Alternative Law Journal, 29 (2), April 2004, p 87.

9. Ivenson Kurt - Dr. Law and order politics fuels violence’ University of Sydney - article 3 March 2005 ‘

10. Institute for Integrity, Leadership and Professionalism in Policing, http://www.policefoundation.org/docs/iilp_

assess.html, accessed 11 September 2006.11. Sean O’Toole, “Prisons: the Politics of Punishment” Alter­

native Law Journal, 27 (5), 2002, p 242 12. (See PDF)12. “Victims say stopping re-offending is more important than

prison” Drugscope, 16 Jan 200513. Sean O’Toole, “Prisons: the Politics of Punishment” Alter­

native Law Journal, 27 (5), 2002, p 242 Other references: Law-and-order politics, public-opinion polls and the media. (Australia). Sharon N. Casey and Philip Mohr. Psychiatry, Psychology and Law 12.1 (April 2005): pl41 Flanagan, T. (1996). Public opinion on crime and justice: History, development, and trends. In T. Flanagan & D.R. Longmire (Eds.), Americans view crime and justice: A national public opinion survey (pp. 1-15). Thousand Oaks, CA: Sage.

14. Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1, AGPS, Canberra, 1991, para. 9.3.1. Find the report online at: www.austlii.edu.au/au/ other/IndgLRes/rciadic.

15. Australian Bureau of Statistics, Prisoners in Australia 2005, ABS cat. no. 4517.0, Commonwealth of Australia, Canberra, 2005, p5

16. http://www.smli.com.au/articles/2003/10/20/1066631354424.html?from=storyrhs

17. ibid.18. Aboriginal and Torres Strait Islander Social Justice Commis­

sioner, Human Rights and Equal Opportunity Commission of Australia, Submission to the Expert seminar on Indig­enous Peoples and the administration of justice, Madrid, Spain, 12-14 November 2003 at <http://www.lireoc.gov. au/socialJustice/madrid/issuel.litml>

19. Walker, J& McDonald, D. (1995) The Over-Representation of Indigenous People in Custody in Australia, Australian Institute of Criminology, Canberra at < http://www.aic.gov. au/publications/tandi/ti47.pdf>

20. ACOSS (2004), National Community and Social Services Sector Joint Statement Indigenous Affairs in Australia - at a critical junction, Australian Council of Social Service, NSW at http://www.acoss.org.au/upload/pubhcations/ papers/info%20 365.pdf

21. ANTaR Qld (2002) Submission on Indigenous imprison­ment and the impact of some provisions of the Vagrants, Gaming and Other Offences Act, 1931

22. Ibid2 3. Australian Institute of criminology, Australian Crime: F acts

and Figures 2005, p 88.24. Margaret Cameron (2001) Women Prisoners and Correc­

tional Programs25. Department of Justice- Victorian Prisoner Health Survey

(February 2003).26. VCOSS (2005) Request for a Systematic Review of

Discrimination Against Women in Victorian Prisons27. Ibid28. Ibid29. Commonwealth Office of the Status of Women (2003)

“The Health and Wellbeing of Women in Prison” Focus on Women, 8

30. Ibid31. WA Department of Justice (2002) Profile of Women in

Prison, Executive Summary32. op. cit. Commonwealth Office of the Status of Women

(2003)33. op. cit. WA Department of Justice (2002)34. Victorian Health Promotion Foundation, The health costs

of violence: Measuring the burden of disease caused by intimate partner violence- A summary of findings (2004).

35. op. cit. WA Department of Justice (2002)36. op. cit. VCOSS (2005)37. ibid38. op. cit. WA Department of Justice (2002)

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